Australia: Continuing reform of the Heavy Vehicle National Law – Now is the time to ensure you comply

There has been significant activity recently in the area of
safety regulation for the heavy vehicle transport industry (see our
previous
updates) and further reforms are on the way.

In particular, key amendments to the chain of responsibility
(CoR) and executive officer liability provisions
in the Heavy Vehicle National Law (HVNL) are set
to commence in mid-2018.

It is critical to prepare now by examining your systems and
ensuring you are in a position to comply with these new
obligations.

Amendments to CoR and executive officer liability

The HVNL regulates the use of heavy vehicles in all Australian
states and territories except Western Australia and the Northern
Territory. At the end of last year, amendments were passed to the
HVNL in the host jurisdiction Queensland to:

impose a new primary duty of care on each party in the CoR for
a heavy vehicle to ensure the safety of their transport activities,
"so far as reasonably practicable";

impose a new positive due diligence obligation on executive
officers to ensure CoR parties comply with their primary duty of
care;

introduce penalties with different categories for breach of the
primary duty of care, which align with the penalties for breach of
duty under other national safety laws. This is currently up to $3
million for a company and $300,000 or 5 years imprisonment for an
individual for the most serious offences involving
recklessness.

These amendments are set to commence in mid-2018.

The reforms are aimed at distributing the regulatory burden
across all off-road parties in the supply chain whose actions or
inactions can influence on-road behaviour. They will capture
employers, prime contractors of drivers, operators, schedulers,
consignors, consignees, packers, loaders and unloaders.

They form part of a recent trend of bringing road and rail
related safety laws into line with general WHS laws. While the laws
still remain separated, the core concepts are being harmonised and
the laws are intended to complement each other.

Further reform to give "real teeth" to the CoR
laws

More recently, last month Australian transport ministers
approved policy changes proposed by the National Transport
Commission (NTC) to give "real teeth" to
the CoR laws, according to the NTC Chief Executive. These include
changes to:

enable direction that a whole fleet or class of vehicles be
inspected where there is a reasonable belief the fleet or class is
defective;

give the Courts the power to issue injunctions to address
ongoing safety risks; and

allow the National Heavy Vehicle Regulator to publish Court
outcomes including penalties imposed.

The NTC is now developing a draft Bill to implement these
further reforms.

How can you prepare?

Those in the chain of responsibility should ensure they
understand the impact of the impending changes and implement
systems to respond to what the law requires. For officers, a review
of existing governance arrangements should be undertaken so that
each officer can be confident they are able to meet their personal
due diligence obligations when the laws commence.

We can help you prepare by assisting you to understand how the
HVNL applies to your business, review your systems and implement
necessary changes.

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Driving a heavy vehicle on an inappropriate route could pose risk to public safety and damage to public infrastructure.

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